Sunday, August 17, 2008

Jury Nullification - A juror tries to question the legitimacy of drug laws

Via Tim Lynch at Cato blog comes the story of a juror in a cocaine case.

Shortly after deliberations began, the jury sent a note to the judge saying that one of the jurors was concerned about the legitimacy of the law in question. When the judge questioned him, the juror explained (this from the 40 page explanation (pdf) by Judge D.J. Young to justify his own actions):

My question was where, if, . . . as every schoolboy knows, the highest law in the land is the United States Constitution, and if [C]ongress had to go to amend the [C]onstitution in, actually it was ratified in 1919, the 18th Amendment, in order to have the power to ban not interstate commerce but mere possession, where is [Congress' authority to ban mere possession of drugs] in the [C]onstitution[?]

Congress is empowered by Article I, in a list of about 17 specific empowerments, I'm unaware, and it was never made clear to me, where [banning mere possession of drugs] is authorized in the Constitution.

The judge explained that the juror needed to follow the instructions as to the law provided by the court and apply it to the case. When the juror continued to have difficulty, the judge replaced him.

The defendant was then promptly convicted.

Is this a legitimate reason to remove a juror? Because of his view that drug laws are not constitutional? The judge went on for pages and pages as to why it was important not to have someone like him on a jury.

Here's the part that made me laugh out loud:

If Taken Seriously, Jury Nullification Threatens to Undermine the Democratic Process and the Rule of LawIf it were taken seriously by mainstream Americans, jury nullification would threaten to unravel the fabric of our democracy. The impropriety of nullification emanates from the notion that ours is "a government of laws and not of men." ... This means simply that no citizen is above the law, and none is free to make his own law.

And the judge then goes off the deep end.

The notion that nullification will change the law is drivel. Those who would characterize it as a noble form of civil disobedience are deeply delusional.

The judge needs some lessons on the sickness in our democratic process already extant that nullification could potentially cure.

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Rogue jurors and humpty dumpty judges

A couple of days ago, I talked about the judge who kicked off a juror for questioning the law. Well, Thomas R. Eddlem was the juror that got kicked off and who ended up sparking a 40 page justification by the judge. Eddlem gives his story here and here.

“It is not only the juror’s right, but his duty, to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.” C.F. Adams, “The Works of John Adams,” 253-255 (1856)"

The jury has a right to judge both the law as well as the facts in controversy. -- John Jay, 1st Chief Justice of the Supreme Court

It would be an absurdity for jurors to be required to accept the judge's view of the law, against their own opinion, judgment, and conscience. -- John Adams

In 1852 in his book Trial By Jury, attorney Lysander Spooner wrote as follows:"For more than six hundred years - that is, since Magna Carta, in 1215 - there has been no clearer principle of English or American constitutional law, than that, in criminal cases, it is not only the right and duty of juries to judge what are the facts, what is the law, and what was the moral intent of the accused; but that it is also their right, and their primary and paramount duty, to judge of the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of, such laws."

Jefferson regarded jury nullification as the most important check on government. In 1789 he also wrote:"I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution."

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A few years ago I was in court for the selection of my county's grand jury. The jury had been picked and the judge asked if anyone had any questions or why they thought they should not be on the jury. A Quaker man stood up and said that while his religion allowed him to sit in fair judgment of his fellow man, he was also obligated to judge the law as he deemed necessary.The judge immediately dismissed him.K

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